Bhavadasan, J,

Are the legal heirs of a person, who died as a result of an injury suffered due to the fall in the pot hole on a main road, entitled to receive compensation? If so, who is liable? These are some of the interesting questions thrown up for consideration in this appeal. First on to the facts: Little did the members of the family of late Rafeeq realise what was in store for them on 18.7.1991, when Rafeeq as usual set out on his bicycle to the parallel college to attend classes. On the way back he fell into a pot hole on the road. He suffered a head injury. He was taken to Anwar Memorial Hospital, from where he was referred to Medical Trust Hospital, Ernakulam. He left for the heavenly abode on 20.7.1991 at 6.45 p.m. According to the plaintiffs, the cause of injury was the fall in the pot hole on Kodungallur-Kongorppilly road maintained by the P.W.D. It is pointed out that on several occasions complaints had been preferred to the P.W.D. by the people regarding the pot holes on the road, but that did not yield any result. Had the road been properly maintained, according to the plaintiffs, this mishap could have been avoided. They also pointed out that P.W.D. and the State were under an obligation and duty to maintain the road in proper condition and keep it safe. Their failure to do so has resulted in the accident.

2. Rafeeq, who was a school drop out was studying in a parallel college. He was aged 17 years at the time of the accident. It is claimed that he used to help his father in running a teashop and by his death his parents have suffered a loss of Rs.30/-per day as his services are no more available. They would also say that they had to borrow Rs.25,000/- for the treatment of Rafeeq. They also claimed amounts towards transportation to hospital, funeral expenses etc. Even though compensation due, is much more than Rs.2 Lakhs, the plaintiffs limited their claim to Rs.2 Lakhs with future interest at 12%.

3. The defendants resisted the suit. They denied that there was a pot hole as alleged in the plaint. According to them the road takes a sharp turn at the place of accident and the lower portion near the super elevation, which is at lower level. It was so aligned for the purpose of smooth negotiation of the vehicle. That is described as a pot hole. The accident occurred due to the carelessness on the part of Rafeeq himself. The road had been properly maintained. The allegation that the people had complained about the pot holes on the road is incorrect. There was no such complaint, nor were there any pot holes on the road. The second defendant had taken timely steps to maintain the road properly. There was collection of some rain water on the road. It was unnecessary to provide any sign of caution as there was no danger posed. They denied the quantum of compensation claimed by the plaintiffs. Pointing out that the defendants were not responsible for the accident and that they were not liable to pay compensation, they prayed for dismissal of the suit.

4. The court below raised necessary issues for consideration. The evidence consists of the testimony of P.Ws.1 to 4 and Exts.A1 to A12 marked on the side of the plaintiffs. The defendants had D.W.1 examined and Ext.B1 marked. The court below came to the following findings:

i) Exts. A8(a) to (d) were not properly proved.

ii) There was no evidence to show how Rafeeq had fallen in the pot hole on the road.

iii) The person, who accompanied Rafeeq and who was the eye witness is not examined.

iv) Plaintiffs were not able to prove how exactly the accident had occurred and that there was a pot hole as alleged.

5. Based on the above conclusions, the suit was dismissed. The said judgment and decree are assailed in this appeal.

6. Both sides were elaborately heard.

7. The following issues arise for consideration:

i) Was the death of Rafeeq as a result of the injury suffered in the fall in the pot hole on the road as alleged by the plaintiffs?

ii) Are the defendants respo